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EEOC Targets Emerging Workforce Technology Trends

The Equal Employment Opportunity Commission (EEOC) is promoting new technology to not only recruit, hire and advance workers, but also to reduce bias when it comes to all three of these goals, said EEOC chair Jenny Yang at the Society for Human Resource Management’s (SHRM’s) Employment Law & Legislative Conference.

“The workplace is rapidly changing and so are HR practices,” Yang said March 15 at the conference in Washington, D.C., Yang noted that the agency is interested in how technology is transforming work, including the increasing use of online selection devices, social media, “big data” and talent analytics that inform hiring decisions and affect advancement opportunities.

“We’re looking into those issues to ensure good practices are put in place to recruit, hire and advance workers, and to promote equal employment opportunity,” she said. “We appreciate that analyzing some of these data sets holds promise as a means to provide solutions to reduce bias in the decision-making process and more closely focus on job-related characteristics. Our goal is to ensure that employment practices are designed to use data in a thoughtful way, to promote equal opportunity, and not exclude individuals for reasons that are not job-related and may be based on protected characteristics.”

For example, Yang said employers can use big data to analyze “many data points of their workforce, some of which are job-related and some of which are not.” This could be done to develop a model profile of “the ideal employee” or “the ideal candidate” and then target those characteristics in hiring, she added.

One of the problems with this could be potentially excluding people who have the qualities to succeed but are not currently represented in the workforce being analyzed. For example, a number of vendors are marketing products that look at the flight risk score for an employee, based on data mined from various sources, she said. The score represents how long the worker is likely to stay at the company. “Now while it sounds appealing, it’s easy to see how this can have [an] adverse impact on women, who might be more likely to take a break in their career to have a child or be a caregiver, or on people with disabilities.”

Yang said the agency is also interested in the ways employers are using online assessments in the recruiting process. “In some cases the content of these online screenings could disproportionality impact racial and ethnic minorities.”

In the Works

In addition to providing a glimpse into future interests, Yang went over some of the recent agency developments affecting employers. She touched on:

*Pay data. In January, the EEOC, in concert with the Department of Labor, proposed adding pay information to EEO-1 reports, due on or before Sept. 30, 2017. Employers with more than 100 workers would be required to report their employees’ W-2 earnings and hours worked across 10 job categories and by 12 pay bands, according to the agency. Comments on the proposal are due by April 1, 2016. Yang said a second comment period will be opened up this summer. “Collecting pay data is a significant step forward in addressing discriminatory pay practices,” she said.

*Retaliation. Also in January, the agency updated its 1998 enforcement guidance on retaliation. EEOC enforcement guidance documents inform employers about the commission’s interpretation of the law and promote voluntary compliance. The percentage of retaliation charges has roughly doubled since 1998, making retaliation the most frequently alleged type of violation raised with the EEOC. Nearly 43 percent of all private-sector charges filed in fiscal year 2014 included retaliation claims. “Retaliation is a persistent and widespread problem in the nation’s workplaces,” Yang said. “Ensuring that employees are free to come forward to report violations of our employment discrimination laws is the cornerstone for effective enforcement.”

All of the laws the EEOC enforces make it illegal to fire, demote, harass or otherwise retaliate against applicants or employees because they complained about discrimination on the job, filed a charge of discrimination with the EEOC, participated in an employment discrimination proceeding or engaged in any other protected activity under employment discrimination laws.

*Systemic harassment. Harassment charges comprise about 30 percent of all the charges the EEOC receives, with race harassment being the most frequent, followed by sex and disability harassment. In January 2015, Yang announced the formation of the Select Task Force on the Study of Harassment in the Workplace, which is expected to soon publish a report on the problem of workplace harassment and propose ways to prevent it.

The task force is comprised of 16 members from around the country, including people in academia, legal practitioners, organized labor representatives and SHRM representatives. “SHRM has been an important member of the task force and I thank you for your contributions,” she said.